Feb 2015

Guardianship vs. Power of Attorney: What’s the Difference?

An estate planning lawyer explains guardianship and power of attorney.

Whether you’re thinking about incapacity planning for yourself, a spouse, or an elderly parent, you probably have questions about the various estate planning documents that make up an incapacity plan. Frequently, people wonder whether they need a guardianship or a power of attorney. Because the two estate planning documents share similarities, many people believe they accomplish the same goals. In reality, there are several important differences between guardianships/conservatorships and powers of attorney.

Power of Attorney

A power of attorney allows an individual to designate another person (called an agent) to act on his behalf. A power of attorney can be as broad or as limited as the maker wishes. In Missouri, a durable power of attorney for health care allows a designated agent to make health care decisions on behalf of the maker (called the principal).

A separate estate planning document called a durable power of attorney for finances is required for an agent to have authority over the principal’s financial decisions.

An experienced estate planning attorney can create powers of attorney that allow your agent to step in when you become incapacitated or otherwise unable to handle your financial and health care decisions. It’s important to remember, however, that a person can only create a power of attorney when he or she is of sound mind. Once incapacity sets in, it is too late to make a power of attorney.

Guardianship/Conservatorship

Guardianships (care for the person) and conservatorships (care for the person’s money) can only be created by the probate court. In many cases, the court appoints the same person to serve as both guardian and conservator. Guardianships and conservatorships are often necessary when a person becomes incapacitated and has no power of attorney in place. Unlike a power of attorney, the court – not the ward – has the final say regarding who serves as guardian/conservator.

When a prospective guardian/conservator petitions the court for a guardianship/conservatorship, he or she must file appropriate legal documents, send required notices, and convince the court that the guardianship/conservatorship is necessary and that he or she is best suited to serving as guardian/conservator.

Springfield, Missouri Estate Planning Law Firm

At the Law Offices of Randy L. Smith, LLC, we help people create estate planning documents that provide peace of mind. Call today at (417) 841-2775 to speak to an experienced estate planning lawyer about your estate or incapacity plan.

This website has been prepared by The Law Offices of Randy L. Smith, LLC for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.